UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

THE HOUSING AUTHORITY OF THE 

CITY OF PICHER, OKLAHOMA, 

 Plaintiff, 

v. 

UNITED STATES OF AMERICA, 

EX REL. SECRETARY, DEPARTMENT 

OF HOUSING AND URBAN 

DEVELOPMENT, 

 Defendant - Appellee, 

and 

BOARD OF COUNTY 

COMMISSIONERS OF THE COUNTY 

OF OTTAWA, OKLAHOMA, 

 Defendant - Appellant. 

No. 16-5159 

(D.C. No. 4:14-CV-00322-CVE-PJC) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, McKAY, and MORITZ, Circuit Judges. 

_________________________________ 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

August 11, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

In this interpleader action, the Board of County Commissioners of the County 

of Ottawa, Oklahoma (the County) appeals the district court’s entry of summary 

judgment to the United States, on behalf of the Secretary of the Department of 

Housing and Urban Development (HUD). Exercising jurisdiction under 28 U.S.C. 

§ 1291, we affirm. 

I. BACKGROUND

 In the 1960s, the Housing Authority of the City of Picher, Oklahoma (PHA) 

began operating a low-income public housing project with financial assistance from 

HUD pursuant to a Consolidated Annual Contributions Contract (ACC). In 1983, the 

federal government designated a portion of Oklahoma, including the City of Picher, 

as the Tar Creek Superfund site due to health and environmental hazards from 

extensive zinc and lead mining operations. In 2004, the state of Oklahoma began 

relocating Picher’s residents due to the health hazards and the risk of unexpected 

building collapse. In 2008, a tornado struck Picher and destroyed much of the 

housing project, rendering it uninhabitable. Picher, which was located in Ottawa 

County, ceased municipal operations in 2009 and began involuntary dissolution 

proceedings the next year. 

 After the tornado, the PHA obtained an insurance settlement of approximately 

$1.7 million and, for several years, explored whether to rebuild the project in the 

nearby town of Fairland. The PHA eventually sought HUD’s permission to rebuild 

in Fairland, but HUD denied the request and directed that the project be terminated. 

When both HUD and the County requested the approximately $1.2 million remaining 
3 

in the PHA’s bank account, PHA filed an interpleader action in Oklahoma state court. 

HUD removed the case to federal court and moved for summary judgment, arguing 

that the County was not entitled to the interpled funds because it was a stranger to the 

ACC, which expressly prohibited the creation of any enforcement right in a third 

party; the County was not involved in the project; the County could not claim to be a 

successor to the PHA because the project no longer existed; and the interpled funds 

belonged to HUD under the plain terms of the ACC. The County responded that the 

ACC was ambiguous, the County was the successor in interest to the City of Picher, 

HUD waived any claim to the interpled funds by waiting almost six years to make a 

claim, and the County had an equitable claim to at least a portion of the interpled 

funds for services it supplied to the project. 

Meanwhile, the district court dismissed the PHA from the action because it 

disclaimed any interest to the funds. After summary-judgment briefing was 

complete, the district court transferred the case to the United States Court of Federal 

Claims, reasoning that it lacked jurisdiction. The Claims Court concluded that it 

lacked jurisdiction and transferred the case back to Oklahoma. 

After the re-transfer, the Oklahoma district court determined that it in fact had 

jurisdiction and granted HUD’s motion for summary judgment. Applying federal 

law, the court first ruled that the ACC unambiguously provided that all of the funds 

remaining after termination of the project belonged to HUD. It based that conclusion 

on the confluence of numerous contractual provisions, the most pertinent of which 

we outline. 
4 

One contractual provision defined a “General Fund”: “All monies and 

investment securities received by or held for the account of the [PHA] in connection 

with the development, operation and improvement of projects in accordance with an 

ACC with HUD shall constitute the ‘General Fund.’” Aplt. App., Vol. I at 48. 

Another required the PHA to “deposit and invest all funds and investment securities 

received by or held for the account of the [PHA] in connection with the development, 

operation and improvement of the projects . . . in accordance with the terms of [a] 

General Depository Agreement,” id., which the parties had executed separately. The 

ACC defined “Operating receipts” as “all rents, revenues, income, and receipts 

accruing from, out of, or in connection with the ownership or operation of [the] 

project.” Id. at 46. The ACC further required the PHA to purchase a variety of 

insurance coverages, including a “Commercial Property [policy] . . . written with a 

blanket limit, on a replacement cost basis, and with an agreed value clause 

eliminating any coinsurance provision.” Id. at 85.1

 It also required the PHA to use 

any insurance proceeds to “restore, reconstruct, and/or repair any damaged or 

 1

 The commercial-property insurance requirement was set out in an attachment 

to the ACC that was referred to in Section 13 of the ACC: “The types of insurance 

required, or that should be purchased, and other requirements with respect to 

insurance coverage are listed in Part B, Attachment VII, of this ACC.” Aplt. App., 

Vol. I at 50. The district court did not discuss this provision but based its view that 

the PHA was required to purchase insurance on another provision in Section 13, one 

requiring the PHA to “procure adequate insurance to protect the [PHA] from 

financial loss resulting from various hazards if the [PHA] determines that exposure to 

certain hazards exists.” Id. As the County points out, that provision did not require 

the PHA to purchase “various hazards” insurance unless it deemed it necessary to do 

so. However, Attachment VII clearly required the PHA to purchase commercial 

property insurance. 
5 

destroyed property of a project, except with the written approval of HUD to the 

contrary.” Id. at 50–51. And perhaps most importantly to this case, the ACC 

provided that in the event the project was terminated, “all project reserves shall 

become part of another project administered by the [PHA] in accordance with the 

terms of [the] ACC. If no other project(s) under management exists, the remaining 

project reserves shall be distributed as directed by HUD.” Id. at 51 (emphasis 

added). 

Here, HUD denied the PHA’s request to rebuild the project in Fairland and 

instead terminated the project and directed that the remaining funds be returned to 

HUD. Hence, the district court concluded that the funds belonged to HUD. The 

court acknowledged that the ACC permitted the PHA to pool funds unrelated to the 

project or HUD in the account where it kept project funds: “The [PHA] may 

. . . deposit into an account covered by the terms of the General Depository 

Agreement, by lump-sum transfers of funds from the depositories of other projects or 

enterprises of the [PHA] in which HUD has no financial interest, amounts necessary 

for current expenditures of items chargeable to all projects and enterprises of the 

[PHA].” Id. at 48 (emphasis added). But the court concluded that the insurance 

proceeds did not arise out of “other [PHA] projects or enterprises . . . in which HUD 

had no financial interest,” id., but from an insurance policy that the ACC required the 

PHA to maintain as part of its deal with HUD and that was paid for with federal grant 

money. 
6 

 The court further concluded that even if the PHA had a claim to the remaining 

funds, the ACC unambiguously prohibited third-party claims against either the PHA 

or HUD: “[N]othing in this ACC shall be construed as creating any right of any third 

party to enforce any provision of the ACC or to assert any claim against HUD or the 

[PHA].” Id. at 55. And to the extent the County claimed a right to the remaining 

funds as the successor of the dissolved City of Picher, the court pointed out a 

distinction between the PHA, which was a party to the ACC, and the City of Picher, 

which was not. The court therefore reasoned that the County remained a stranger to 

the ACC. 

 The district court addressed two other arguments the County made. It first 

rejected the contention that by waiting six years to make a claim on the insurance 

proceeds, HUD waived its claim to the interpled funds. The court reasoned that HUD 

did not need to make a separate claim to the funds because the ACC vested HUD 

with the right to request the return of any project reserves in the General Fund (i.e., 

the PHA’s bank account subject to the General Depository Agreement) when the 

project was terminated. Second, the court declined the County’s request for 

$135,912 in equitable relief for services the County claimed it had provided to the 

PHA between 2008 and 2013. The court concluded that the provision of services to 

the PHA had no relationship to the ACC and that many of the services were those the 

County was bound to provide as the county in which the project was located. 
7 

II. DISCUSSION

 We review an order granting summary judgment de novo, “applying the same 

standards that the district court should have applied.” Fields v. City of Tulsa, 

753 F.3d 1000, 1008 (10th Cir. 2014) (internal quotation marks omitted). A “court 

shall grant summary judgment if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). “[W]e examine the record and all reasonable inferences that 

might be drawn from it in the light most favorable to the nonmoving party.” Fields, 

753 F.3d at 1009 (internal quotation marks omitted). 

After fully considering the record, the parties’ arguments, and the governing 

law, we are convinced that the district court properly granted summary judgment to 

HUD. We therefore affirm the district court’s judgment for substantially the reasons 

the district court provided. We add only the following. 

The County claims the district court overlooked or improperly analyzed a 

number of its arguments. But almost all of those arguments concern the PHA’s right 

to the funds, not the County’s. Although the County claims it “stepped ‘into the 

shoes’ of the City (including [the] PHA)” when Picher was dissolved, Aplt. Opening 

Br. at 21 (emphasis added), the only legal authority it cites, M. Anderson, Dissolving 

Cities, 121 Yale L.J. 1364 (2012), concerns succession to a dissolved city and makes 

no mention of a city’s public housing authority. Further, as the Oklahoma Supreme 

Court explained in determining whether bonds issued by a housing authority were an 

indebtedness of the state, a housing authority is, by Oklahoma statute, “‘a public 
8 

body corporate and politic’”—which is how the PHA described itself in its 

interpleader petition, see Aplt. App., Vol. I at 13—and therefore not “an agency or 

instrumentality of a city or county.” Boardman v. Okla. City Hous. Auth., 445 P.2d 

412, 416 (Okla. 1968) (quoting Okla. Stat. tit. 63, § 1055); accord Hon. Charles W. 

Van, 11 Okla. Op. Atty. Gen. 482, Okla. A.G. Opin. No. 79-303, 1980 WL 114835, 

at *2 (Jan. 22, 1980) (“Public housing authorities created pursuant to [the Oklahoma 

Housing Authority Act, which includes § 1055], are not instrumentalities of the city 

or county within which they sit and, therefore, are not subject to the Political 

Subdivisions Tort Claims Act.”). We therefore conclude that the County failed to 

establish that it stepped into the PHA’s shoes by virtue of Picher’s dissolution. 

Consequently, we need not address the County’s contentions about the PHA’s rights 

to the funds that it claims the district court overlooked or improperly analyzed. 

III. CONCLUSION

 The judgment of the district court is affirmed. 

Entered for the Court 

Monroe G. McKay 

Circuit Judge